Element Two of the Unpreventable Employee Misconduct Defense: Effective Communication

In part two of this four-part series addressing the “unpreventable employee misconduct” defense, we will examine the second element an employer must prove to successfully defend against an OSHA citation: that the employer effectively communicated a rule, which, if followed, would have prevented the violation.

The idea behind this element is simple: the employer must be able to show that the employee whose conduct was in violation of the rule had previously been told about the rule. However, proving that the communication (1) occurred and (2) was adequate is a different story. This post will provide with you with the tools to ensure you have two legs to stand on in proving the communication element of the unpreventable employee misconduct defense.

One thing to keep in mind at all times: simply referring employees to OSHA standards is insufficient. Nor is it sufficient to have employees sign forms acknowledging their responsibility to read various rules and/or safety manuals.  Keep in mind that a pattern or practice of noncompliance by employees may demonstrate ineffective communication.

Ultimately, establishing rules and making them available to employees is not enough. Employers must also take the next step to ensure that their employees understand the safety rules and are equipped with the knowledge and tools to follow them.

The following are examples of effective communication means and just plain old good practices for contractors. In a perfect world, each of these means of communication would be utilized by the employer, in some manner:

  • Distribute a written copy of the workplace rules to every employee with an acknowledgement form for employees to sign
  • Regular safety training programs that are tailored to specific tasks and distribution of written training materials
  • Regular tool box talks and safety meetings with documentation to indicate the date, what safety topics were discussed, and who attended (including pre-task plans)
  • Safety videos
  • Communication at these training/safety meetings to emphasize the importance of rule compliance
  • Attendance sheets with dates and names for any and all safety discussions, video viewing, and trainings
  • Maintenance of personnel files with records showing the safety training provided to each employee
  • Warning signs in hazardous work areas

*It is critical that the employer consider any non-English speaking employees and provide appropriate translations for each of the above communication methods.

If there is one thing to take away from this post, it is that documentation is key. Employers should maintain written records of any training, including dated sign-in sheets, agendas, and related materials. This should eliminate any doubt regarding whether an employer effectively communicated a rule. In so many contexts, written records are often the best evidence.

The next blog post will further explore the third element of the unpreventable employee misconduct defense: that the employer insisted on compliance and had methods of discovering violations of its rules, even though it did not know about the specific violation.

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